Citation Nr: 0422229
Decision Date: 08/13/04 Archive Date: 08/20/04
DOCKET NO. 02-12 828 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to VA compensation benefits under 38 U.S.C.A
§ 1151 for residuals of surgical treatment at a VA medical
facility on March 2, 1989.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Counsel
INTRODUCTION
The veteran had active military service from March 1965 to
March 1967.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, that denied the above claim. In March 2003, the
veteran testified before the RO during a personal hearing.
FINDING OF FACT
Additional disability (claimed as residuals, status post
excision, left salivary gland) is not the result of VA
hospital care, medical or surgical treatment, or examination.
CONCLUSION OF LAW
Entitlement to VA compensation under 38 U.S.C.A § 1151 for
residuals of surgical treatment of excision, left salivary
gland, performed at a VA medical facility in March 1989 is
not warranted. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R.
§ 3.358 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the Board finds that VA has
satisfied its duties to inform and assist the veteran under
the Veterans Claims Assistance Act of 2000 (VCAA). In a
March 2001 letter, the RO notified the veteran of the
information and evidence needed to substantiate and complete
her claim, and of what part of that evidence she was to
provide and what part VA would attempt to obtain for her.
She was also asked to submit evidence and/or information in
her possession to the RO. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). The content and timing of the
March 2001 letter complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). See
Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24,
2004).
Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003).
In this case, the veteran's VA medical records from the
surgery in question are on file. The RO has obtained all VA
medical records identified by the veteran. 38 U.S.C.A.
§ 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2003).
All indicated private medical records have also been
obtained. The veteran testified at a personal hearing in
March 2003.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, the
veteran has not been afforded a VA medical examination
concerning her claim. However, the U.S. Court of Appeals for
the Federal Circuit has held that in order for a VA
examination to be necessary, "the veteran is required to
show some causal connection between his disability and his
military service. A disability alone is not enough." Wells
v. Principi, 326 F.3d 1381, 1383-84 (Fed. Cir. 2003). The
same principle holds true here, in that the veteran must show
some causal connection between the residuals she is claiming
and her surgery at VA in March 1989. Thus, a VA examination
and/or opinion is not warranted in the present case, based on
the evidence of record.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
development action is necessary. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2003).
The veteran claims entitlement to compensation for residuals
of surgical treatment excision, left salivary gland. The
provisions of 38 U.S.C.A. § 1151 were amended, effective
October 1, 1997, to include the requirement of fault,
requiring that additional disability be the result of
carelessness, negligence, lack of proper skill, error in
judgment or similar fault on the part of VA in furnishing
care, or an event not reasonably foreseeable. See
38 U.S.C.A. § 1151 (West 2002). Here, the veteran's claim
for compensation under the provisions of 38 U.S.C.A. § 1151
was received by the RO in February 2001; therefore, the
regulations effective on October 1, 1997 apply in this case.
The law provides that a disability is a qualifying additional
disability if the disability was not the result of the
veteran's own willful misconduct and, the disability was
caused by hospital care, medical or surgical treatment, or
examination, and the proximate cause of the disability was
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of VA in
furnishing the hospital care, medical or surgical treatment,
or examination; or an event not reasonably foreseeable. 38
U.S.C.A. § 1151 (West 2002).
Although claims for 38 U.S.C.A. § 1151 benefits are not based
upon actual service connection, there are similarities in
their adjudication. Boeck v. Brown, 6 Vet. App. 14, 16-17
(1993). A claim for 38 U.S.C.A. § 1151 benefits must be
supported by medical evidence of a current disability and
medical evidence that the current disability resulted from VA
hospitalization, medical examination, or treatment.
The applicable regulation provides that where it is
determined that there is additional disability resulting from
a disease or injury or an aggravation of an existing disease
or injury suffered as a result of hospitalization, medical or
surgical treatment, or examination, compensation will be
payable for such additional disability. 38 C.F.R. § 3.358(a)
(2003).
The regulation provides that, as applied to medical or
surgical treatment in determining that additional disability
exists, the physical condition prior to the disease or injury
will be the condition which the specific medical or surgical
treatment was designed to relieve. 38 C.F.R. § 3.358(b)(1)
(2003). It also provides that compensation will not be
payable for the continuance or natural progress of disease or
injuries for which the hospital care, medical or surgical
treatment, or examination, was authorized. 38 C.F.R.
§ 3.358(b)(2) (2003).
The regulation provides that, in determining whether such
additional disability resulted from a disease or an injury or
an aggravation of an existing disease or injury suffered as a
result of hospitalization, medical or surgical treatment, or
examination, the following considerations will govern:
(1) It will be necessary to show that the
additional disability is actually the result of
such disease or injury or an aggravation of an
existing disease or injury and not merely
coincidental therewith.
(2) The mere fact that aggravation occurred will
not suffice to make the additional disability
compensable in the absence of proof that it
resulted from disease or injury or an aggravation
of an existing disease or injury suffered as the
result of hospitalization, medical or surgical
treatment, or examination.
(3) Compensation is not payable for the necessary
consequences of medical or surgical treatment or
examination properly administered with the express
or implied consent of the veteran.
(4) When the proximate cause of the injury
suffered was the veteran's willful misconduct or
failure to follow instructions, it will bar the
veteran from receipt of compensation hereunder
except in the case of incompetent veterans.
38 C.F.R. § 3.358(c) (2003).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
During her personal hearing in March 2003, the veteran
testified that if she had been allowed to go to the ear, nose
and throat (ENT) clinic at the Dallas VA Medical Center at an
earlier date, the surgery to remove her left salivary gland
on March 2, 1989, would not have been necessary. She
maintains that she sought treatment on 4 occasions in
December 1988 and January 1989 for a sore throat, before she
was permitted to be seen at the ENT clinic on March 1, 1989.
It was at that time that the left-sided swelling in her
throat necessitated surgical removal of the salivary gland,
the next day, at the VA Medical Center in Dallas, Texas. She
also maintained that this surgery resulted in dental and
sinus disabilities.
VA treatment records show that in January 1985 and December
1986, the veteran was treated for sialoadenitis. In January
1988, she sought treatment for, among other things, swollen
mandibular glands.
On January 7, 1989, the veteran presented to VA with
complaints of pain in both sides of the mandible, and
difficulty swallowing. On January 19, 1989, she presented to
VA with a left neck knot with pain and swelling. A
consultation sheet from the emergency room to the ear, nose
and throat section, showed a diagnosis of adenitis to rule
out gland stones. On January 23, 1989, the veteran was seen
at VA for status post excision of stones of the left
submandibular gland one year prior, now with a firm, but
mobile gland.
In a March 1, 1989, preoperative report, from the VA Medical
Center in Dallas, Texas, it is noted that the veteran
presented with documented stones milked from the left
warthins duct. She had had multiple episodes of acute
submandibular sialoadenitis. The physician's admitting slip
shows that she was admitted under urgent circumstances for
sialoadenitis.
On March 2, 1989, the veteran underwent a left submandibular
gland excision. The operation report shows that she
presented with recurrent acute left submandibular
sialoadenitis, which had been treated with local sialagogues,
heat application, and antibiotic treatment. She had salivary
calculi milked from her left Wharton's duct on several visits
to the hospital, and had had two previous recent infections
requiring antibiotic treatment. The physician reported that
the veteran tolerated the procedure extremely well and she
was taken to the recovery room awake and in good condition.
She had completely normal facial nerve function, including
excellent marginal mandibular function at the conclusion of
the procedure. The final diagnosis was recurrent acute left
submandibular sialoadentis.
Post-operative notes dated in March 2, 1989, reveal that the
veteran was alert and oriented. On March 3, 1989, she had
difficulty swallowing. She was discharged to go home on
antibiotics and Tylenol on March 3, 1989. The tissue
examination diagnosis was submandibular gland (left),
sirolithiasis and sialordentitis with fibrosis, chronic
inflammation and grandular atrophy. On March 17, 1989, the
veteran was described as doing well, with essentially normal
examination.
In April 1989, the veteran presented to VA with fever and
chills and pharyngeal pain. Later in April, examination of
the pharynx was normal. This was diagnosed as tonsillitis
for which the veteran had a tonsillectomy in June 1989.
The veteran sought treatment for sinus congestion in December
1993. The assessment was rule out sinusitis. In January
1994, she was diagnosed as having questionable allergic
sinusitis. VA treatment notes dated in December 1995 and
April 1996 show that she was diagnosed as having allergic
sinusitis and chronic sinusitis, respectively.
Private treatment records from Baylor College of Dentistry
show the veteran's history and dental treatment there from
September 2001 until December 2001. On her clinical record,
it was noted that there was no significant medical history.
It was remarked that there was decreased saliva production
due to removal of salivary gland. She had chronic
generalized gingivitis, periodontis, calculus, stain and
plaque on the teeth. In September 2001, it was noted that
she underwent consultation for extraction of teeth numbered
22 to 28 due to severe decay, and that there was no
significant medical history. In October 2001, teeth 22-28,
and 2, were extracted and on number 2 an alveoloplasty was
done. In December 2001, dentures were completed. She was
seen in January and February 2002 for adjustments.
The medical evidence of record is negative as to a finding of
a causal relationship between the veteran's current sinusitis
and dental problems and the surgical removal of her salivary
gland in March 1989. Nor is there any competent medical
evidence of record showing that prior treatment by VA
necessitated the removal of the veteran's salivary gland in
March 1989.
The evidence does not reveal any basis upon which the Board
can reasonably conclude that any carelessness, negligence,
lack of proper skill, error in judgment or similar instance
of fault in VA's care was the proximate cause of any
additional disability. Nor does the evidence reveal that any
additional disability was proximately caused by an event not
reasonably foreseeable. In this regard, the Board notes that
Baylor dental records show in a remark section that there was
decreased saliva due to removal of salivary gland, but there
is no indication that this was related to the veteran's
current dental problems. The veteran does not identify any
act or omission on the part of VA that was careless,
negligent, lacking in proper skill, erroneous in judgment, or
the result of similar instance of fault during the March 2,
1989 surgery. The Board can find no such act from this
evidence. Further, the veteran has not provided any evidence
that she has any additional dental or other disability
related to her excision of the left salivary gland. The
records she has submitted show that her teeth were extracted
in 2001 due to severe decay and that her sinusitis is
allergic in origin. The numerous outpatient treatment
records are referable to other ailments.
Consequently, the Board finds that, upon consideration of the
available records, including the private and VA records, the
veteran's contentions including her personal hearing
testimony, and the absence of evidence suggesting a different
outcome, the preponderance of the evidence is against the
claim. The veteran's own contentions are not competent.
There is no indication that she possesses the requisite
medical knowledge or education to render a probative opinion
involving medical diagnosis or medical causation. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The criteria for an award of compensation benefits for
residuals, status post excision, left salivary gland under 38
U.S.C.A. § 1151 have not been met. The Board has considered
the doctrine of reasonable doubt, but finds that the record
does not provide an approximate balance of negative and
positive evidence on the merits. 38 C.F.R. § 3.102 (2003).
ORDER
Entitlement to VA compensation benefits under 38 U.S.C.A
§ 1151 for residuals of surgical treatment at a VA medical
facility on March 2, 1989, is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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